AMENDMENT NO. 3 TO PARTICIPATION AGREEMENT
WHEREAS, Genworth Life and Annuity Insurance Company (formerly, GE Life and
Annuity Assurance Company) on behalf of itself and its separate accounts, PIMCO
Variable Insurance Trust and Allianz Global Investors Distributors LLC
(formerly, PIMCO Advisors Distributors LLC and, before that, PIMCO Funds
Distributors LLC) entered into a Participation Agreement dated June 28, 2000
(the "Agreement");
WHEREAS, the Agreement was amended effective May 1, 2003 to change the name of
the Distributor and to replace Schedule A of the Agreement;
WHEREAS, the Agreement was amended effective April 29, 2005 to replace Schedule
A of the Agreement;
WHEREAS, GE Life and Annuity Assurance Company has changed its name to Genworth
Life and Annuity Insurance Company (the "LIFE COMPANY");
WHEREAS, PIMCO Advisors Distributors LLC has changed its name to Allianz Global
Investors Distributors LLC (the "Distributor");
WHEREAS, the parties wish to amend the Agreement to (i) reflect the parties'
new names; (ii) add new Section 2.6, Contract Owner Information; (iii) add new
Section 2.7, Compliance Matters; and (iv) update Schedule A;
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
which consideration is full and complete, the parties hereby agree as follows:
I. All references in the Agreement to GE Life and Annuity Assurance Company
shall be changed to Genworth Life and Annuity Insurance Company;
II. All references in the Agreement to PIMCO Advisors Distributors LLC shall
be changed to Allianz Global Investors Distributors LLC;
III. New Section 2.6, which is attached to this Amendment as Attachment A, is
added to the Agreement;
IV. New Section 2.7, which is attached to this Amendment as Attachment B, is
added to the Agreement; and
V. Schedule A is replaced in its entirety with "Amendment No. 3 to Schedule
A," which is attached to this Amendment as Attachment C.
The Agreement, as supplemented by this Amendment, is ratified and confirmed
effective March 13, 2007.
GENWORTH LIFE AND ANNUITY INSURANCE COMPANY,
on behalf of itself and its separate accounts
By:
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Xxxxxxxx X. StiffSenior Vice President
PIMCO VARIABLE INSURANCE TRUST
By:
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ALLIANZ GLOBAL INVESTORS DISTRIBUTORS LLC
By:
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ATTACHMENT A
2.6 Contractholder Information
(a) Agreement to Provide Information. LIFE COMPANY agrees to provide Fund
Agent, upon written request, the taxpayer identification number ("TIN"), the
Individual/International Taxpayer Identification Number ("ITIN"), or other
government-issued identifier ("GII") and the Contract owner number or
participant account number, if known, of any or all Contractholder(s) of the
account, the name or other identifier of any investment professional(s)
associated with the Contractholder(s) or account (if known), and the amount,
date and transaction type (purchase, redemption, transfer, or exchange) of
every purchase, redemption, transfer, or exchange of Shares held through an
account maintained by LIFE COMPANY during the period covered by the request.
Unless otherwise specifically requested by the Fund Agent, LIFE COMPANY shall
only be required to provide information relating to Contractholder-Initiated
Transfer Purchases or Contractholder-Initiated Transfer Redemptions.
(i) Period Covered by Request. Requests must set forth a specific period,
not to exceed 90 days from the date of the request, for which
transaction information is sought. Fund Agent may request transaction
information older than 90 days from the date of the request as it
deems necessary to investigate compliance with policies established or
utilized by the Fund or Fund Agent for the purpose of eliminating or
reducing any dilution of the value of the outstanding shares issued by
a Fund.
If requested by Fund Agent, LIFE COMPANY will provide the information
specified in Section 2.6(a) above for each trading day.
(ii)Form and Timing of Response. LIFE COMPANY agrees to provide, promptly
upon request of Fund Agent, the requested information specified in
Section 2.6(a). LIFE COMPANY agrees to use its best efforts to
determine promptly whether any specific person about whom it has
received the identification and transaction information specified in
Section 2.6(a) is itself a "financial intermediary," as that term is
defined in Rule 22c-2 (an "Indirect Intermediary") and, upon request
of Fund Agent, promptly either (i) provide (or arrange to have
provided) the information set forth in Section 2.6(a) for those
Contractholders who hold an account with an Indirect Intermediary or
(ii) restrict or prohibit the Indirect Intermediary from purchasing
Shares in nominee name on behalf of other persons. LIFE COMPANY
additionally agrees to inform Fund Agent whether it plans to
perform (i) or (ii) above. Responses required by this paragraph must
be communicated in writing and in a format mutually agreed upon by the
Parties. To the extent practicable, the format for any Contractholder
and transaction information provided to Fund
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Agent should be consistent with the NSCC Standardized Data Reporting
Format.
(iii)Limitations on Use of Information. Fund Agent agrees not to use the
information received hereunder for marketing or any other similar
purpose without the prior written consent of LIFE COMPANY; provided,
however, that this provision shall not limit the use of publicly
available information, information already in the possession of Fund
Agent, the Fund or their affiliates at the time the information is
received pursuant to this Amendment or information which comes into
the possession of Fund Agent, the Fund or their affiliates from a
third party.
(b) Agreement to Restrict Trading. LIFE COMPANY agrees to execute written
instructions from Fund Agent to restrict or prohibit further purchases or
exchanges of Shares by a Contractholder that has been identified by Fund Agent
as having engaged in transactions in Shares (directly or indirectly through
LIFE COMPANY's account) that violate policies established or utilized by the
Fund or Fund Agent for the purpose of eliminating or reducing any dilution of
the value of the outstanding Shares issued by a Fund. Unless otherwise directed
by Fund Agent, any such restrictions or prohibitions shall only apply to
Contractholder-Initiated Transfer Purchases or Contractholder-Initiated
Transfer Redemptions that are effected directly or indirectly through LIFE
COMPANY.
(i) Form of Instructions. Instructions must include the TIN, ITIN or GII
and the specific individual Contract owner number or participant
account number associated with the Contractholder, if known, and the
specific restriction(s) to be executed. If the TIN, ITIN, GII or the
specific individual Contract owner number or participant account
number associated with the Contractholder is not known, the
instructions must include an equivalent identifying number of the
Contractholder(s) or account(s) or other agreed upon information to
which the instruction relates.
(ii)Timing of Response. LIFE COMPANY agrees to execute instructions from
Fund Agent as soon as reasonably practicable, but not later than five
(5) business days after receipt of the instructions by LIFE COMPANY.
(iii)Confirmation by LIFE COMPANY. LIFE COMPANY must provide written
confirmation to Fund Agent that Fund Agent's instructions to restrict
or prohibit trading have been executed. LIFE COMPANY agrees to provide
confirmation as soon as reasonably practicable, but not later than ten
(10) business days after the instructions have been executed.
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(c) Definitions. For purposes of Section 2.6 and Section 2.7 of this
Agreement, the following terms shall have the following meanings, unless a
different meaning is clearly required by the context:
(i) The term "Contractholder" means the holder of interests in a Contract
or a participant in an employee benefit plan with a beneficial
interest in a Contract.
(ii) The term "Contractholder-Initiated Transfer Purchase" means a
transaction that is initiated or directed by a Contractholder that
results in a transfer of assets within a Contract to a Fund, but does
not include transactions that are executed: (i) automatically pursuant
to a contractual or systematic program or enrollment such as a
transfer of assets within a Contract to a Fund as a result of "dollar
cost averaging" programs, insurance company approved asset allocation
programs, or automatic rebalancing programs; (ii) pursuant to a
Contract death benefit; (iii) as a result of a one-time step-up in
Contract value pursuant to a Contract death benefit; (iv) as a result
of an allocation of assets to a Fund through a Contract as a result of
payments such as loan repayments, scheduled contributions, retirement
plan salary reduction contributions, or planned premium payments to
the Contract; or (v) pre-arranged transfers at the conclusion of a
required "free look" period.
The term "Contractholder-Initiated Transfer Redemption" means a
transaction that is initiated or directed by a Contractholder that
results in a transfer of assets within a Contract out of a Fund, but
does not include transactions that are executed: (i) automatically
pursuant to a contractual or systematic program or enrollments such
as transfers of assets within a Contract out of a Fund as a result of
annuity payouts, loans, systematic withdrawal programs, insurance
company approved asset allocation programs and automatic rebalancing
programs; (ii) as a result of any deduction of charges or fees under
a Contract; (iii) within a Contract out of a Fund as a result of
scheduled withdrawals or surrenders from a Contract; or (iv) as a
result of payment of a death benefit from a Contract.
(iii) The term "Funds" shall mean the constituent series of the Fund, but
for purposes of Section 2.6(a) shall not include Funds excepted from
the requirements of paragraph (a) of Rule 22c-2 by paragraph (b) of
Rule 22c-2.
(iv) The term "Fund Agent" shall mean the Distributor or such other persons
or entities as may be designated as such by the Fund for purposes of
this Section 2.6 from time to time.
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(v) The term "promptly" shall mean as soon as practicable but in no event
later than five (5) business days from LIFE COMPANY's receipt of the
request for information from Fund Agent.
(vi)The term "Shares" means the interests of Contractholders corresponding
to the redeemable securities of record issued by a Fund.
(vii)The term "written" includes electronic writings and facsimile
transmissions.
In addition, for purposes of this Section 2.6, the term "purchase" does not
include the automatic reinvestment of dividends or distributions.
(d) Scope. LIFE COMPANY acknowledges and agrees that this Section 2.6 shall
apply to the handling of all transactions in Shares, whether authorized under
the Agreement or any other agreement between or among LIFE COMPANY and the
Fund, any transfer agent of the Fund, the Distributor, any other Fund Agent or
any of their affiliates, and further acknowledges and agrees that the Agreement
and any other such agreement is hereby modified to the extent necessary to
reflect the agreements herein.
(e) Additional Obligations. It shall be LIFE COMPANY's obligation to make
any required notification(s) to its Contractholders of the provisions of this
Section 2.6 and LIFE COMPANY agrees to do so. LIFE COMPANY also agrees to
provide point of sale disclosure documents to its Contractholders consistent
with applicable legal requirements as in effect from time to time.
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ATTACHMENT B
2.7 Compliance Matters
As required by the Agreement, LIFE COMPANY shall comply with provisions of
the Prospectuses and Statement of Additional Information of the Fund, and with
applicable federal and state securities laws. Among other things, LIFE COMPANY
shall be responsible for reasonably assuring that: (a) only orders to purchase,
redeem or exchange Shares received by LIFE COMPANY or any Indirect Intermediary
prior to the Valuation Time shall be submitted directly or indirectly by LIFE
COMPANY to the Fund or its transfer agent or other applicable agent for receipt
of a price based on the net asset value per Share calculated for that day in
accordance with Rule 22c-1 under the 1940 Act/1/; and (b) LIFE COMPANY shall
cause to be imposed and/or waived applicable redemption fees, if any, only in
accordance with the relevant Fund's then current Prospectuses or Statement of
Additional Information and/or as instructed by Fund Agent. LIFE COMPANY further
agrees to make reasonable efforts to assist the Funds and their service
providers (including but not limited to Fund Agent) to detect, prevent and
report market timing or excessive short-term trading of Shares. To the extent
LIFE COMPANY has actual knowledge of violations of Fund policies (as set forth
in the applicable Fund's then current Prospectuses or Statement of Additional
Information) regarding (i) the timing of purchase, redemption or exchange
orders and pricing of Shares, (ii) market timing or excessive short-term
trading, or (iii) the imposition of redemption fees, if any, LIFE COMPANY
agrees to report such known violations to Fund Agent. For purposes of this
provision, the term "Valuation Time" refers to the time as of which the Shares
are valued on each business day, currently the close of regular trading on the
New York Stock Exchange (normally, 4:00 p.m., Eastern Time) on each day that
the New York Stock Exchange is open for business.
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/1/ Orders to purchase, redeem or exchange Fund shares received by LIFE
COMPANY subsequent to the Valuation Time on any given day shall receive a
price based on the next determined net asset value per Share in accordance
with Rule 22c-1 under the 1940 Act.
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ATTACHMENT C
AMENDMENT NO. 3 TO SCHEDULE A
Effective March 13, 2007
PORTFOLIOS AVAILABLE UNDER THE CONTRACTS
PIMCO Variable Insurance Trust
All Asset Portfolio-Advisor Class Shares
Foreign Bond Portfolio (U.S. Dollar Hedged)-Administrative Class Shares
High Yield Portfolio-Administrative Class Shares
Long-Term U.S. Government Portfolio-Administrative Class Shares
Low Duration Portfolio-Administrative Class Shares
Total Return Portfolio-Administrative Class Shares
SEPARATE ACCOUNTS UTILIZING THE PORTFOLIOS
Genworth Life & Annuity VA Separate Account 1
Genworth Life & Annuity VA Separate Account 2
Genworth Life & Annuity VA Separate Account 3
Genworth Life & Annuity VL Separate Account 1
CONTRACTS FUNDED BY THE SEPARATE ACCOUNTS UTILIZING THE FUNDS
Commonwealth Extra Variable Annuity Commonwealth 3 Variable Universal Life Insurance
Commonwealth Freedom Variable Annuity Commonwealth 4 Variable Universal Life Insurance
Commonwealth Variable Annuity Commonwealth Commonwealth Variable Universal Life Insurance
Variable Annuity Plus Foundation Variable Annuity Commonwealth VL Flex Variable Life Insurance
Personal Income Design Variable Annuity RetireReady Estate Optimizer Variable Life Insurance
Bonus Variable Annuity RetireReady Choice Variable RetireReady Accumulator Variable Life Insurance
Annuity RetireReady Extra Variable Annuity RetireReady Legacy Variable Life Insurance
RetireReady Extra II Variable Annuity RetireReady Protection Plus Variable Life Insurance
RetireReady Freedom Variable Annuity
RetireReady Selections Variable Annuity
Variable Income Provider Immediate Variable Annuity
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